¶1Dissenting Opinion by
¶2This is a murder case. The defendant was tried for the most serious of all crimes. The trial could have resulted in the death penalty. The jury fixed the penalty at life imprisonment, which, while not as harsh and agonizing as death, is still a dolorous termination to the great gift of life. A reading of the record would indicate that the defendant was probably guilty. It is *499thus greatly to be lamented that the verdict returned by the jury should be suspect in any way.
¶3The trial judge, in charging the jury, said: “Your verdict must be unanimous before you can be discharged.” He was wrong. When a man is convicted of crime, he must be assured that twelve jurors freely and of their own will voted to convict him. There can be no such assurance in this case. It could have been that on the final vote 8 stood for conviction and 4 for acquittal, but, since the minority were told they could not go home unless there was unanimity, they could well have abandoned their beliefs and their honest conclusions in order to get home.
¶4The judge’s charge deprived the defendant of his constitutional prerogative which says in Article I, Sec. 6: “Trial by jury shall be as heretofore, and the right thereof remain inviolate.”
¶5A jury trial in Pennsylvania has always encompassed a voluntary unanimous verdict. If such unanimous voluntariness cannot be attained, a new trial is imperative.
¶6The majority opinion treats the lapse in the judge’s charge as a mere bruise in the anatomy of the trial, one that was healed by the rest of what was said by the judge. I regard the lapse as a major irreparable fracture in the trial. Nothing which was said by the judge in the remaining portion of his charge could remedy the harm accomplished when he said in effect that the individual jurors would never see their wives, husbands and children again unless they unanimously agreed on a verdict.
¶7What the judge probably intended to say was: “Your verdict must be unanimous before you can find the defendant guilty or innocent.” He did not, however, say this. He used the wrong words and in using the wrong words he gave the jury the wrong tools with which to work. And the jury could have hammered out an improper verdict with the wrong tools.
¶8*500There are some mistakes in a charge which are of so grave a character that nothing can wash the resulting stain out of the garment of justice. Let us suppose the judge had said: “The defendant is to be presumed guilty until proved innocent.” No matter if the rest of his charge would have favored the defendant by a proportion of 90 to 10, the defendant, in the event of a conviction, would have been indubitably entitled to a new trial. The Constitution would have been involved.
¶9One can stumble over a statute, misquote a decision, stutter through a rule of law, garble an accepted jurisprudential principle, and somehow justice may still be done, but one cannot misstate the Constitution and expect all to be well. To misquote or misapply the Constitution is to smash a hole in the dikes of inalienable prerogatives, privileges and rights, with a possible flooding away of guarantees to life, liberty and property.
¶10What the majority has done has been to amend the Constitution, which it has no right to do, and naturally, to that kind of insupportable procedure, I must
¶11Dissent.